Lawyer Tries To Prevent Yale From Using Photo Of Joe DiMaggio & Marilyn Monroe On Book About The Two

from the this-is-not-what-ip-law-is-about dept

Copycense points to the news of how the executor of Joe DiMaggio’s estate is threatening to sue Yale University Press for using a photo of DiMaggio with Marilyn Monroe, with whom he was famously (if briefly) married, in a book about DiMaggio’s relationship with Monroe. Morris Engelberg, who has been an aggressive protector of DiMaggio’s image since his death is claiming this is not allowed:

“We will not authorize any photo of Joe DiMaggio and Marilyn Monroe … to be on the jacket of any book,” he responded in a letter dated Sept. 28. “This was a ‘no-no’ in Mr. DiMaggio’s lifetime,” the attorney wrote.

“We have respected Mr. DiMaggio’s wishes that there be no commercial or other venture depicting” Joe and Marilyn.

The thing is… it’s not clear that DiMaggio (and now Engelberg) actually have the right to prevent that. Think about it: if a newspaper simply was reporting on DiMaggio and Monroe, and snapped a photo of the two, that’s perfectly legal. So why wouldn’t the same be true for a book. While this is only at the “threat” stage, so it’s not clear what laws Engelberg would actually rely on, you’d have to imagine it would be yet another attempt at using a publicity rights claim. As we’ve been discussing lately, publicity rights have suddenly become quite popular, and the law around it is really troubling in how it prohibits all sorts of speech. Right now, of course, publicity rights law is very much in flux, and dependent on various state laws and ever changing caselaw. My guess is that Engelberg might be more bark than bite, because losing a lawsuit like that could have some pretty serious consequences.

While it might not be entirely relevant, this threat reminds me of the story we had a couple years ago about an attempt by Marilyn Monroe’s estate to use a publicity rights claim. Apparently, her estate had convinced California tax authorities that Monroe was a New York resident, to avoid paying taxes on the estate in California. The problem? New York’s publicity rights laws only applied to living people, not dead. California has posthumous publicity rights. So, when the estate tried to claim California publicity rights, it was rejected, because of the whole “NY resident” thing. The ruling there basically said Monroe no longer had publicity rights. So that doesn’t bode well for Engelberg’s threats… though I’m guessing that DiMaggio probably qualified as a California resident (despite playing for the Yankees, he was famous as a San Francisco native), so perhaps that’s what he’s banking on.

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Comments on “Lawyer Tries To Prevent Yale From Using Photo Of Joe DiMaggio & Marilyn Monroe On Book About The Two”

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out_of_the_blue says:

So much wrong here, before even get started.

Yale University putting out yet another book about long dead millionaire sports player and movie star, with an objection by executor of “estate” using some statutory super-right over an unremarkable use of a photo. — That’s how WEIRD this society has become. If we don’t clear out all such “cruft”, the society is going to grind to a halt.

Farrell McGovern (profile) says:

This has been encountered before...

There is a movie called “Insignificance” directed by Nicolas Roeg (The Man who fell to Earth). The synopses from IMDB:

“Four 1950’s cultural icons (Albert Einstein, Marilyn Monroe, Joe DiMaggio and Senator Joseph MacCarthy) who conceivably could have met and probably didn’t, fictionally do in this modern fable of post-WWII America. Visually intriguing, the film has a fluid progression of flash-backs and flash-forwards centering on the fictional Einstein’s current observations, childhood memories and apprehensions for the future.”

Except they didn’t use their names,and they are called The Professor, the Actress, the Ballplayer, and the Senator, respectively. Could this have been because of action from the same legal front?

Mitch Featherston (profile) says:

Publicity Rights Fiasco

Again, we see an example of why publicity rights are stupid, as they apply DEAD people. It is my position that a living person should be allow to dictate how their image is used… other than the area of “fair use” or whatever you want to call it. From an editorial position, there are, of course, exceptions. Once you’re dead, your image and likeness should be fair game.

The family of James Dean will not agree with this position, but can’t they come up with another way to generate revenue?

MrWilson says:

California Residency

“though I’m guessing that DiMaggio probably qualified as a California resident (despite playing for the Yankees, he was famous as a San Francisco native)”

From what I can find online, including a few search results from Google Books, it appears that DiMaggio was a Florida resident when he died. One book mentioned he established Florida residency when he was younger for tax purposes. Since he died at his home in Florida, I would imagine he probably was still a resident at the time, though I don’t have a definitive source that proves it.

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